1814513 (Refugee)

1814513 (Refugee) [2022] AATA 1762 (21 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1814513

COUNTRY OF REFERENCE: Nigeria
MEMBER:David McCulloch
DATE:21 April 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 April 2022 at 10:51am
CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Christian – Christian farmer – race – Yoruba – communal violence – attacks from armed Fulani herdsmen – fear of Boko Haram – fear of kidnapping – killing of family members – credibility issues – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nigeria, applied for the visa on 13 April 2018. The delegate refused to grant the visa.
The applicant attended an interview with a delegate of the Department of Home Affairs on 4 May 2018.
The applicant appeared before the Tribunal on 12 April 2022 at 9.30am to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal was assisted with the use of an interpreter in the Yoruba language. The applicant was assisted by his registered migration agent, who did not attend the hearing.
The Tribunal hearing was also attended by [name] who was indicated to be the applicant’s wife. It was indicated that she wished to provide supporting evidence as a witness, albeit that she indicated she was not privy to any of the events in Nigeria.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020 a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant entered Australia [in] March 2018 on a [Temporary] visa. The applicant lodged an application for a protection visa on 13 April 2018. The applicant visited [Country 1] for tourism from [November] 2014 to [December] 2014 and [Country 2] [in] March 2016.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Ibadan, Oyo State, Nigeria. The applicant is a Christian of Yoruba ethnicity who speaks, reads and writes both English and Yoruba. The applicant has been separated from his wife since [June] 2017. The applicant’s parents, former wife, [and specified family members] reside in Nigeria. The applicant is in contact with them every few days through an application called ‘[name]’.
From birth until February 2000, the applicant lived at [Address 1 in] Ibadan, Oyo State. From February 2000 until February 2005, the applicant lived at [Address 2 in] Obadan, Oyo State. From February 2005 until July 2016, the applicant lived at [Address 3 in] Ibadan, Oyo State. From February 2013 until July 2016, the applicant lived at [Address 4 in] Oyo State. From July 2016 until February 2019, the applicant lived at [Address 5 in] [Town 1], Ibadan, Oyo State.
The applicant attended [a named] School in [year], graduating from [High School 1] in Nigeria in [year]. The applicant attended [another named] School [between specified years]. The applicant attended the [College 1] from [year], completing a Higher National Diploma in [Subject 1] in [year]. The applicant was unemployed until he was [age] years. In listing his education the applicant indicated he attended [Qualification 1] Test [in specified periods]. The applicant attended [Qualification 2] Test from October 2015 until November 2017.
From February 2000 until February 2003, the applicant was training as [Position 1] at [Employer 1]. The applicant was receiving financial assistance from his parents during this time. From April 2003 until July 2007, the applicant worked as [a position 2] at [Employer 2]. From December 2007 until November 2017, the applicant worked as [position 3] at [Employer 3] in Ibadan.
The applicant provided a statement, undated, setting out his claims for protection as follows (not corrected for spelling or grammar):
Statement of [the applicant]
I, [name] of [Address 6] in the state of New Souti Wales, make the following statement in support of my claims for protection.
I fear serious harm in Nigeria as a Christian farmer.
I fear this harm from Fulani herdsmen whose cattle were poisoned on my land.
My background and history
I was born on [date] in Ibadan, Oyo State, Nigeria.
I am separated and have [number] children.
I am of the Yoruba ethnicity.
I am Christian.
I am an [occupation 1] by profession but I was also involved in farming in Nigeria. I also do some freelance [occupation 2 work].
Problems in Nigeria
My main reason for leaving Nigeria was due to the severe oppression, victimisation, discrimination and mistreatment I suffered at the hands of Fulani herdsmen (part of the Fulani national movement).
Fulani herdsmen are largely nomads who go through towns with their cattle, desperately searching for pastures to sustain their cattle.
They would continuously invade my farm by bringing their cattle to feed on it and this would destroy my crops and huts. They had guns and knives and would just walk onto my land with their cattle.
I made so many efforts to stop them; I tried to get consent of the community chairman to help me but everyone feared the Fulani herdsmen because they are from the same ethnicity as the president of Nigeria and they are heavily armed. I felt a deep sense of loss because my farm was continuously being destroyed.
One day, I decided to put pesticide on my crops and when the herdsmen invaded, six of their cattle died from eating the pesticide. This made them investigate my house and frantically search for me within my neighbourhood. They found my mother-in-law at home and hit and beat her. She was an older woman of [age] years and this violence led to her death. This happened [in] January 2017 and she was buried [days later]. I have provided her death certificate and funeral poster with my application.
In around March 2017, the Fulani herdsmen attacked my [Brother A, named] and he died in hospital in May 2017. [Brother A] and I were walking from my farm to the town and we were stopped by them. They went to hit me but [Brother A] stood between us and they beat him. I fled and he was very badly beaten. He was rushed to hospital and was released sometime afterwards but had to be readmitted in May and within two hours he died. I have provided a copy of his death certificate and photos from his funeral with my application.
The Fulani herdsmen searched for me across the country and they could easily track me because they had my picture from when they invaded my house the first time.
My wife left me after the burial of my brother. She told me that she thought that she would be killed next. I arranged for my mother and my children to relocate to a secret village because I was moving around from place to place to avoid the herdsmen.
In the midst of hurt, damage and disturbing experiences I resorted to relocating to Lagos, a central city in Nigeria where I stayed at different houses.
In Lagos I later met with [Mr A1] who works at a [business 1] and he assisted me to travel to Australia through the Gold Coast.
I arrived in Perth, then went to [another city], then to the Gold Coast on [a day in] March 2008 and met someone who advised me to go to the [Town 2] to meet with a service that assists people applying for protection.
My fears if I am forced to return to Nigeria
I cannot go back to Nigeria or any other neighbouring countries because the Fulani herdsmen crisis remains a major issue in Nigeria not only for me. Thousands of people have been killed and many more have been expelled from their homes.
The present Nigerian government does not appear willing to initiate any forceful action against them. Many Nigerians believe these Fulani herdsmen may be members of the Boko Haram sect, masquerading as Fulani herdsmen. They live all over West African countries and they have connections there.
I fear harm from the Fulani herdsmen as they have my pictures with them and are able to track me. I fear that they will still want to kill me because their cattle were poisoned from eating crops on my land and also because I am Christian and they hate Christians.
Many Nigerians believe the president has deliberately shied away from commenting on the crisis as it is widely known that he comes from the Fulani ethnic group and because of this Nigerian police are unable to do any serious things against them.
I would not be able to relocate to another area of Nigeria for safety because the Fulani herdsmen and their associates are in all areas of Nigeria.
By way of an email on 18 April 2018, the applicant made a correction of the date he went to the Gold Coast. The correct date according to the email was [in] March 2018.
The applicant provided the following documents to the Department:
·An article in New Telegraph entitled, ‘Herdsmen attach: “Death toll rise to 50 in Kogi”’ by Muhammad Bashir, published on 17 March 2018. The article reported that the attack was suspected to be perpetrated by Fulani herdsmen.
·An article in National Mirror entitled, ‘Fulani Herdsmen Attacked Oyo Community Accusing Them of Poisoning Their Cows’, published on 21 November 2017. The article reported that at least 10 people were critically injured as a result of the attack after the herdsmen accused them of killing 15 cows by poison.
·An article entitled, ‘Suspected herdsmen attack Ogun teachers on way to school’, published on 27 January 2018. The article reported that two teachers were attacked by suspected Fulani herdsmen with a machete.
·An article in International Christian Response entitled, ‘At least 13 Christians killed in Muslim Fulani herdsmen attacks in Kaduna State, Nigeria’, published on 11 August 2016. The article reported that Muslim Fulani herdsmen attacked a cluster of predominantly Christian villages in Kaduna state, killing at least 13 Christians.
·Certificate of death of [Brother A].
·Certificate of death of [Mother-in-law A].
·Several pictures depicting the remains of [Mother-in-law A].
·A medical report in relation to the applicant’s [Brother A, named] from [Doctor A] of [a named] Medical Centre, dated [in] April 2018, which states that the applicant sustained severe injury from assault from Fulani herdsmen on [a day in] March 2017. It further noted that the applicant’s medical treatment was significantly impaired on account of financial challenge.
·An investigation report of [a named] Division, The Nigeria Police dated [in] April 2018 in relation to a report made by the applicant [in] January 2017. The report states that the applicant intentionally put pesticide on his farm which resulted in the death of six cattle belonging to Fulani herdsmen after eating the applicant’s crops. The herdsmen went to the applicant’s house and beat his mother-in-law, [Mother-in-law A], then [age] years of age, to death. On a different day, Fulani herdsmen attacked the applicant and his [Brother A] with dangerous weapons. The applicant’s [Brother A] suffered severe injury and died almost three months later as a result of a combination of his injury and [a medical] condition. It indicates that the applicant is in fear of being attacked by the Fulani herdsmen due to threats. The conclusion is that this is a clear case of threatening life however the applicant is advised to keep calm, while effort is being intensified to arrest the culprits.
The Tribunal notes the following evidence of relevance given by the applicant in the interview with the delegate which took place on 4 May 2018. The applicant indicated that he was employed full time as an [occupation 1], Monday to Friday but that he also worked freelance as [an occupation 2]. In 2010 the applicant started farming on a property which was about [distance] from his home in [Town 1], Ibadan. The applicant would travel to the farm on Fridays and return on Sundays. The applicant had a hut on the farm where he would sleep. The applicant’s [Brother A] would come to the farm, and sometimes his wife.
The applicant did not have an employee on the farm but would call people in the vicinity to go and check on the farm.
The applicant indicated that the problem with Fulani herdsmen started, he thinks, in 2012 when they would bring cattle to graze on his property. This issue was raised in a community meeting but nothing was able to stop this happening. Police could not do anything about the issue.
The applicant decided to use a pesticide on his land. The applicant initially in the hearing said it was not his intention to kill the cattle but then later said that it was. The applicant indicated that he applied the pesticide to the land on [a day in] January 2017 and said that it was [later in] January 2018 that the herdsmen took the cattle onto the land and they were poisoned as a result. The applicant refers to the herdsmen coming to look for the applicant both on his farming land and at his home in [Town 1], [distance] away.
The applicant indicated that they came to his home in [Town 1] on [a day in] January 2017 (which the Tribunal notes was a Saturday). The applicant indicated that he was not there, he was in Lagos buying some things and returned home in the evening. The applicant’s wife and children were not there. His wife would have gone to work and his children would have been in school. The children stay at school doing lessons until 5pm.
The applicant indicated that there were two Fulani herdsmen who climbed the fence of the applicant’s home and [others] were at the fence. They attacked the applicant’s mother-in-law, who was the only person in the home. She was injured and later died [that night]. The applicant indicated that neighbours said they saw seven culprits but the applicant’s mother-in-law said she only saw three of them. The applicant was asked whether he reported his mother-in-law’s death to authorities and obtained a death certificate. The applicant indicated that he went to the police station and reported the incident. He said that police told him to be careful.
The applicant indicated that at times after his mother-in-law’s death he would return to his farm. However, police had told him to stay away from the area. The applicant said that the Fulani herdsmen came for the applicant two more times. Later in the hearing, the applicant indicated that this was when he was in Lagos, once in August 2017 and another time in October 2017.
The applicant was then asked about the incident involving his [Brother A]. The applicant indicated that this happened in March 2017. He and his [Brother A] were leaving the farm, perhaps on [a specified day in] March 2017 (a Sunday) and four people came who were armed. The applicant’s [Brother A] tried to push them away. One of the perpetrators had a traditional knife. They also had clubs and guns. The applicant ran away and was chased by two of them. They went back and dealt with his [Brother A]. The applicant went to hide for about an hour before coming back. The applicant’s [Brother A] was taken to the hospital. He was taken to a chemist centre for first aid and then to the hospital for treatment. He was taken care of and released home that day. However, ever since he has been suffering from the attack. They said that the attack was caused by someone who is very strong. The applicant indicated that he reported the incident involving his [Brother A] to the police. They said they would investigate but they have an inability to do so.

The applicant moved away. After this incident, the applicant did not go to his farm again. The applicant also said that he did not sleep at his home in [Town 1] much and had people on his land who were giving him information. The applicant said that he stopped sleeping at his home in [Town 1] on [a day in] May 2017 which is when his brother died from injuries following the attack. The applicant then said that if he went home he would go with four or five people. The delegate notes that this is inconsistent with his indication that he did not return home. The applicant then said that he stopped going, but not entirely and did not sleep there. He stayed in his mother’s home and friends’ houses.
The delegate noted that the written claims indicate that he was living in the [Town 1] home from July 2016 until February 2018 and noted that this was inconsistent with what he had just said. In response, the applicant said he was sleeping elsewhere and that’s why he just put the [Town 1] house in the claims.
The applicant then gave evidence that it was at the point that his brother died that he reported the attack to police (contrary to earlier evidence).
The applicant gave evidence of relocating to Lagos but not being in an exact location, he just travelled around. He would see his children when it was safe. Police advised him to stay hidden. The applicant said he could not give an answer as to where he based himself in Lagos. The applicant indicated that the first incident was in August 2017 in Lagos when he was approached by Fulani herdsmen when he was going to buy [an item 1]. He noticed two people who were coming towards him. They were looking at the applicant. The applicant saw them and noticed that they were walking very fast and did not leave the applicant until he ran. He looked back and saw that they were running after him.
The second incident was in October when he was at [a venue 1], leaving the [venue]. He was there in his capacity as a freelance [occupation 2]. The applicant was pursued the same way. He ran back into the [venue 1] and was followed. They then did not know his whereabouts. The applicant slept in the [venue 1]. The applicant is not sure how many people were following him, but more than two. The applicant then said he thinks there were three.
The delegate noted that there is no indication in his written claims for protection of incidents in Lagos. The applicant agreed that this is relevant to his claim but indicated that it was best to tell this information in person.
The delegate indicated that Lagos has a population of 20 or 21 million people and wondered how he was located. The applicant indicated that Fulani herdsmen are powerful and have lots of money and access.
The applicant indicated that he was still working through all of this period. The applicant indicated that after the first attack in August 2017 he had been looking for ways to leave the country. The applicant came to Australia for the purpose of being a freelance [occupation 2]. It was when he arrived here that he discovered he could apply for protection. The delegate noted that it is surprising that the applicant was not coming to Australia to seek protection permanently, and only decided on arrival. It is indicated that it might have been thought he would have had an intention to seek protection straightaway. The applicant responded ‘yeah’.
The applicant maintained that the Fulani herdsmen will maintain an indefinite desire for revenge, creating a risk for the applicant on return. The applicant indicated that he could not relocate to Lagos because they found him in Lagos.
The applicant indicated that he does not have originals of the supporting documents provided which were obtained by his brother. The originals are in Nigeria. The delegate noted that although the documents relate to events in 2017 they were not issued until 2018. The applicant indicated that he told his brother about the situation and his brother went to the police station and the doctor to get the relevant documents.
The delegate notes that death certificates (in relation to the mother-in-law and [Brother A]) indicate the date of the registration of the deaths as [a date in] April (2018) and that this is unusual because the deaths occurred in January 2017 and May 2017 (respectively). In response the applicant indicated that if you want to obtain a death certificate for something that happened a year ago you can still request it and the federal government will provide this later. The delegate noted that whilst this may be true, the certificates only indicate the deaths that have been recently registered, not just that the document was issued recently. The applicant referred to asking his brother to obtain the documents which were sent to him. The delegate indicated that the documents may not provide an accurate account of what happened. The delegate indicated that it is more likely that the death certificates would have been issued at around the time of the deaths. The applicant indicated that in Nigeria the date is based on when you want to collect it. This is separate from the date that the person has died.
The delegate also noted that the police report is dated April 2018 even though it relates to events that occurred in 2017 which appears a little unusual. The applicant indicated that he asked his brother to send documents as a result of supporting documents being requested as part of the application.
The applicant provided an additional statement to the Tribunal on 30 March 2022 which provided as follows (not corrected for spelling or grammar):
I am a Nigerian refugee under a Temporary Protection Order in Australia ... and I am very lucky to be alive. At this moment in my life I am living between two worlds. My name is [name]. I was born and raised in Ibadan in Oyo State and I am from the Yoruba tribe. [Mother’s name deleted]. Mum is very easy going and generous to all and she is absolutely devoted to our family. My mother is very much like my grandmother who is now [age] years old.
I also have [specified family members]. I also have [children, named]. I miss them all so much. Their mother – my former wife – is gone. More about that later. There is one other very special person in my life; he saved my life … his name is [Mr A]. [Mr A] is a very experienced and wise senior [occupation 2] who introduced me to the [business 1] industry and helped me to become a freelance [occupation 2]. [Mr A] came back into my world when I fled from my home to Lagos although we’ve known each other in the past. If not for [Mr A] I would not be here in Australia today. I would probably be dead. More also about that later.
My home city of Ibadan is the third largest city in Nigeria and has a population of about 3,600,000. I was born and raised in Ibadan. I attended a local [primary] school and then [High School 1]. All of my dearest friends live in Ibadan. My heart aches because I can not be with them ever again; it would cost me my life.
In Nigeria I was also between two worlds; I was a farmer in the remote countryside … about a kilometre from the small village [named] which is about [distance] from Ibadan and has fewer than 1,000 people. I was also – during my journey of escape to my new world – a freelance [occupation 2] in the city of Lagos which with a population of almost 15 million is Nigeria’s largest city. My escape to Lagos was the beginning of my journey from one world to another world … to a world called Australia… a world that I have come to love.
I am in fact an [occupation 1] by profession. I studied hard for six years at [College 1] to get my [Subject 1] qualifications. While doing my studies I worked hard to develop our modest six acre farm into a sustainable place for my family. Before my world was turned upside down when our farm was invaded by nomadic herdsmen and their cattle our farm produced [specified crops] and a variety of other vegetables. We provided jobs for some of the locals and sold some of our food in the local economy. Life was good. Life was very good … and life was getting better every day. I was planning to start a business using my [occupation 1] skills. But our farm is now abandoned … that part of my world is gone … and the nomadic herders who invaded it with their cattle have made it part of their world. They are even using our three little timber and grass huts that we built on our farm to shelter us when we visited.
My family still lives in Nigeria … in a secret location … but more about that in a minute. It was one of the most difficult decisions in my life to leave my family and all my friends. The one thought that sustains me is that my mother and sister will look after my children and my children will look after them. My other [siblings] will also care for them all. I had to flee Nigeria. I had to flee from the assaults, oppression, victimisation, discrimination and mistreatment at the hands of the Fulani … and threats to my very life.
The main reasons for my being targeted are that I simply sought to protect my family farm against nomadic herdsmen from the Fulani Tribe and as a Christian I was considered by the herdsmen to be an infidel. The Fulani herdsmen are Moslems. Unlike most Moslems the herdsmen have an intense hatred of Christians.
These nomads invade villages and towns searching for pastures for their cattle. They invaded my farm for this purpose. My life and the lives of some of my family were and are still under threat. Some of my relatives have already been beaten and killed.
When the nomads invaded our family farm we tried to defend our farm and its huts; it was our livelihood and we had worked very hard for many years to build it. We had made very great sacrifices to build our farm. At first we tried to get the Community Chairman to take action to stop the nomads from herding their cattle onto our farm. This did not work because the nomads are from the same tribe as the Nigerian President and so everyone is afraid to act against them.
One of the ways that we tried to protect our farm was to treat our crops with chemicals that we knew that the nomads’ cattle would not like. We hoped that they would simply go away. Unfortunately some of the cattle got sick. When some of the cattle then died the nomads soon came looking for me in particular and my family to seek revenge. The nomadic herdsmen who are heavily armed with guns and knives and have no respect for other people, their properties or the law were determined to seek revenge on me and my v[Brother A] who worked on our farm.
[In] January 2017 the herdsmen found my elderly mother-in-law and beat her up very badly while they were trying to find out where I could be located. They literally left her for dead. She died a short time later as a result of the beating.
In March 2017 my [Brother A] and I were walking from our farm to the nearby village when we were stopped by a gang of the nomadic herdsmen. The conversation soon escalated into an argument and then they started to beat us. We were heavily outnumbered and so we attempted to escape. We ran in two different directions. I learned later that they caught my [Brother A] and beat him so badly that he had to be rushed to hospital. He died two months later from his injuries.
After my brother was buried my then wife left me and went away as she feared that she might be the next one to be killed. She just disappeared.
Shortly after we were beaten the herdsmen again raided our farm looking for me. I was not there at the time but I learned that the Fulani tribesmen had taken a photograph of me from the farm and were searching for me in the nearby village. I was persuaded that if I stayed around the farm or the village then I would be killed. The herdsmen had two reasons why they wanted to kill me; they believed that I was responsible for the deaths of six of their cattle and they knew that I was (and am) a Christian.
I was convinced that I had to flee the area. I was later told that the Fulani had extended their search for me for many kilometres in all directions…and they knew that Ibadan was my home city.
While moving around to avoid being found I also arranged for my mother and [children] to be secretly relocated to an undisclosed village so that they would be safer. I avoided visiting them as much as I could because I knew that the Fulani herdsmen had a photograph of me and that if I was sighted then the whole of my family would be in greater danger.
Eventually I decided to relocate myself to Lagos which is about [distance] from my former home. It took me about [time] to drive to Lagos with my few belongings packed into my old car. I stayed in different houses in order to avoid detection. For the first time in my life I “couch-surfed”; I was effectively homeless.
A few months after moving to Lagos I met my old [occupation 2] friend named [Mr A]. [Mr A] is a truly amazing man who helped me to stay safe and arranged for me to become a freelance [occupation 2] with his [business 1]. [Mr A] did a lot of clever work in his quiet and determined way behind closed doors and then saw the chance to include me on a list of [occupation 2s] who were to fly to Australia in 2018 [for a project]. [Mr A] got me on to the list of [occupation 2s] and that got me onto the plane. [Mr A] most certainly saved my life.
The feeling of relief as the aircraft lifted from the runway at Lagos can only really be appreciated by someone who has had the experience of an escaping refugee. That feeling of what I would call calm ecstasy was only bettered by the indescribable relief that completely flooded throughout my body when the pilot informed us that we had entered Australian airspace. This was very soon followed by an amazing sense of relief when on [the day in] March 2018 we touched the ground in my new world … Australia.
Of course I was very sad that I was leaving one world behind and was really missing my family … but I was alive … and my journey between two worlds is not yet completed.
I immediately sought asylum and was interviewed on 4 May 2018 by Australian Government authorities. I was granted a temporary protection visa and I am now seeking permanent residency… but I am now living a life of uncertainty between two worlds as I appeal a decision to not grant me anything more.
While my heart aches that I have had to flee my old world I have come to love this new world and the feeling of safety that I am now enjoying and the feeling that I can make a future for myself – and maybe my [children] – in this wonderful new world. I hope for compassion and live in hope.
NOTE: [Mr A] is a fictitious name that has been used to protect the identity of the real person to whom I owe my life.
Also provided to the Tribunal on 30 March 2022 was the following new information:
·An affidavit of [name], dated 11 April 2018, stating that the declarant was the daughter of the late [Mother-in-law A] who died [in] January 2017 at home.
·An affidavit of the applicant, dated 11 April 2018, stating that late [Brother A name] was his brother who died [in] May 2017 at hospital.
·An affidavit of [name], dated 13 March 2019, which stated that the applicant’s life was seriously in danger, the kind that caused the lives of the applicant’s mother-in-law and their brother to be taken due to an issue the applicant had with the Fulani Herdsmen on [a day in] January 2017. It stated that Fulani Herdsmen had made several threats to the applicant’s life that made him run away to Australia, that Fulani Herdsmen would not relent on the issue despite the applicant’s absence. It also stated that [in] February 2019, Fulani Herdsmen re-attacked and burnt down his brother’s house.
Additional evidence as follows was provided on 2 April 2022 being an email dated 2 April 2022 which contains links to three different articles. The body of the email states the following (not corrected for spelling or grammar):
I will like to share and request your attention to link below proof further why it is still dangerous for me to go back to nigeria.
It is about a powerful yoruba man who try to stop Fulani herdsmen from killing yoruba farmers from claiming their land. What happened to him at the moment. What Nigerian goverment did to support Fulani in disguise. The strategic the sunday Igboho used by saying yoruba need their own nation if Fulani will not stop raiding yoruba in their lands. How government used DSS to attack sunday Igboho house and how he flew out of nigeria to avoid being killed.
The links provided by the applicant in his email dated 2 April 2022 lead to the following articles:
·An opinion article by Richard Akinnola, dated 23 January 2021, published for The News entitled, ‘Sunday Igboho vs Fulani: What government should do’. The article appears to have been written based on a video the author watched the night prior to writing this article in which a Yobuba activist, Sunday Igboho addressed the people of Ibarapa in Oyo State over his claims that Fulani herdsmen killed some Yoruba people. The author opined that the killing was due to the government’s failure or complicity in its treatment of the herdsmen which is seen as soft.
·An article by Vincent Ufuoma, dated 20 July 2021, published for International Centre for Investigative Reporting entitled ‘Igboho arrested in Cotonou while preparing to depart for Germany’. The article reported the arrest of a Yoruba activist, Sunday Adeyemo, also known as Sunday Igboho, in Cotonou, Republic of Benin. Thirteen other people were arrested. It also mentioned that a petition was filed by Yoruba Nation agitators to the International Criminal Court against President Muhammadu Buhari, Abubakar Malami, Tukur Buratai, Ibrahim Idris and Muhammed Adamu.
·An article by Adejumo Kabir and Nasir Ayitogo, dated 1 July 2021, published for Premium Times entitled, ‘UPDATED: SSS confirms invading Sunday Igboho’s house, killing two’. The article reported the raid at Sunday Igboho’s home in Ibadan, Oto State. The article stated that 13 people were arrested, but not Mr Igboho. The article enclosed a full statement by Peter Afunanya at a press briefing at the National Headquarters of the Department of State Services Abuja. In the statement, Mr Afunanya advised Mr Igboho to turn himself in to the nearest security agency.
Independent information
The 2020 DFAT report on Nigeria provides the following information:
SECURITY SITUATION
2.54    While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.
Crime and Politically-Motivated Violence
2.55    Nigeria’s crime rate is high for both violent and petty crime. Crime increases at night and includes assault, armed robbery, home invasions and carjacking. Assaults and robberies are common on public transport and in taxis, while petty crimes such as pickpocketing are common in crowds. Nigeria has a well-established reputation as a centre for internet-based scams, often run by organised criminal gangs.
2.56    Militant groups have regularly conducted terrorist attacks against a range of targets, including government and security institutions, oil facilities and infrastructure, the headquarters of international organisations and financial institutions, and transportation facilities such as bus bays. While these have occurred nationwide, they have been most common recently in the northeastern states in relation to the Boko Haram insurgency. In June 2019, for example, Boko Haram militants detonated explosives at a market in Konduga, southeast of Maiduguri, in Borno State, reportedly killing 30 people and injuring 40.
2.57    Kidnappings and abductions have become an acute concern across the country, with 685 kidnappings recorded in the first quarter of 2019 alone. While kidnapping has been a tactic of Boko Haram during its insurgency (see following section), it has increasingly been used by factions in intercommunal conflicts elsewhere in the country and by criminals demanding ransom. Maritime kidnappings in the Niger Delta and the southeast are common, as militants have turned to piracy and related crimes to support themselves. In July 2019, for example, pirates boarded a cargo vessel off the coast of Bayelsa, taking 10 Turkish sailors away by speedboat and holding them for ransom. Prominent and wealthy figures (or their family members) are often targeted for abduction: in May 2019, armed assailants kidnapped the nephew of President Buhari, holding him for more than two months before police conducted a successful rescue operation.
2.58    Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities (see Extrajudicial Killings).
Boko Haram Insurgency
2.59    Boko Haram, which translates roughly to ‘western education is sinful’ in the Hausa language, is a radical Islamist movement that has fought since 2009 to overthrow the government and create an Islamic state in northern Nigeria. The organisation split into two factions in 2016, one pledging allegiance to the so-called Islamic State organisation (Da’esh) and calling itself the Islamic State West Africa Province (ISWAP); the other known as Jama’atu Ahlis Sunna Lidda’await Wal-Jihad (JAS). Most Nigerians still refer to both groups collectively as Boko Haram. This report does likewise.
2.60    Boko Haram promotes a strict version of Islam that forbids Muslims from taking part in any political or social activity associated with Western society, including voting in elections, wearing shirts or trousers, drinking alcohol or receiving a secular education. While initially headquartered in the northeastern city of Maiduguri and still largely centred in Borno state, the Boko Haram insurgency has spread across northern and central Nigeria and into neighbouring countries. The group has also carried out attacks against the police and UN headquarters in Abuja. The Boko Haram insurgency has resulted in thousands of deaths and injuries, widespread destruction, the internal displacement of approximately 2.7 million persons and the external displacement of almost 250,000 Nigerians to neighbouring countries.
The Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians); individuals seen as supporting ‘western’ concepts such as secular education or elections; foreign aid workers; and clerics from other Muslim traditions and Christian preachers. Christians are opportunistically targeted by Boko Haram. However, Muslims are also victims of attacks, in greater numbers than Christians, principally because they constitute a greater proportion of the population in the affected northern states.
2.61    Its insurgent activities have included conventional warfare against state security forces; targeted killings of perceived opponents; bombings of churches, bus ranks, bars and military barracks; and mass attacks on villages and towns, resulting in looting, killing and mass abductions, including of children. In 2014, Boko Haram abducted 276 mostly Christian schoolgirls from Chibok, Borno state, reportedly forcing them to convert to Islam and become ‘wives’ for Boko Haram fighters. Around 100 of the Chibok girls remain unaccounted for. In February 2018, insurgents abducted a further 110 schoolgirls from Dapchi, Yobe state, releasing 104 of the girls two weeks later after negotiations with the government. Five of the remaining girls reportedly died in captivity and one girl continues to be held hostage, allegedly for refusing to deny her Christian faith.
2.62    Boko Haram has also paid, forcibly conscripted, or otherwise coerced young boys and girls to serve in its ranks and perpetrate attacks and raids, plant improvised explosive devices (IEDs), serve as spies, and carry out person-borne IED bombings, often under the influence of drugs. For example, in the June 2019 attack in Konduga, Borno state, Boko Haram insurgents remotely detonated explosives strapped to two girls and a boy, killing 30 people.
2.63    Attempts by security authorities to curtail the Boko Haram insurgency in an enduring fashion have not proved fully successful to date. The government initially declared a state of emergency in May 2013 in the three northeastern states in which Boko Haram was strongest – Borno, Yobe and Adamawa – while in the same year, the Office of the Prosecutor in the International Criminal Court declared the fighting in northeastern Nigeria to be a non-international armed conflict. By March 2015, a regional coalition made up of troops from Nigeria, Cameroon, Chad and Niger had succeeded in winning back all of the towns under Boko Haram’s control, leading President Buhari to declare in 2015 that Boko Haram had been ‘technically defeated’. The insurgency has successfully regrouped in recent years, however, and continues to represent a significant security threat in the northeastern states. International observers report there was a resurgence of Boko Haram activity in 2019, with Boko Haram responsible for 1,136 deaths in Nigeria in 2019, compared to 872 in 2018.
2.64    Examples of recent Boko Haram insurgent activities include (but are not limited to):
-in January 2019, Boko Haram fighters killed at least 60 people in the town of Rann, Borno State;
-in July 2019, suspected Boko Haram fighters killed at least 65 people attending a funeral in Borno state; while in the same month a Da’esh-aligned faction of Boko Haram kidnapped six aid workers near Damasak in Borno state, subsequently executing five of them.
-On 28 September 2020, militants from ISWAP overran a Nigerian military base in the northeastern town of Gubio, killing soldiers and seizing materiel.
2.65    On 28 November 2020, in an attack centred on the village of Koshobe in Borno state, at least 43 farmers were killed in what the UN described as ‘the most violent direct attack against innocent civilians this year’. Some reports claim up to 110 people were killed, including around 30 beheaded. A number of people, including around ten women, remain missing, presumably abducted. The attack occurred relatively close to the state capital of Maiduguri, and is strongly believed to have been carried out by ISWAP.
2.66    Boko Haram’s resurgence comes despite the deployment of thousands of troops to the northeastern states, and the reported government allocation of almost USD80 million (AUD110.8 million) per quarter to combat the insurgency. International observers have expressed concern over a lack of discipline in military operations, noting that reports of low morale among soldiers caused by insufficient military equipment and medical care (and fuelled by high rates of corruption within the military) may be degrading the effectiveness of efforts to defeat the insurgency. Human rights groups have also raised repeated concerns government security forces have committed significant human rights abuses in the context of counter-insurgency efforts against Boko Haram, including extrajudicial killings, torture, arbitrary arrests and other abuses (see relevant sections).
2.67    DFAT assesses Boko Haram poses a serious ongoing threat to security in the northeast of Nigeria, with limited prospects of being neutralised in the short term.
Communal Violence in the Middle Belt region
2.68    A rolling conflict between farmers and migratory herdsmen in the Middle Belt region (Plateau, Adamawa, Nasarawa and Taraba states) has escalated considerably since January 2018, claiming more civilian lives than the Boko Haram insurgency, displacing hundreds of thousands and sharpening ethnic, regional and religious polarisation. Fundamentally a land-use dispute, the conflict has taken on religious and ethnic dimensions (see also Religion). International Crisis Group has described the conflict as Nigeria’s gravest security challenge.
2.69    Since its 2018 escalation, the conflict has involved an ongoing series of clashes between predominantly Fulani herdsmen, and mostly Muslim farmers followed by reprisal attacks against villages. Hundreds have been killed or injured in the clashes, and there have been numerous cases of conflict-related abductions. Clashes and reprisal attacks continued throughout 2019, most notably with the killing of over 130 people in Kajuru, Kaduna State, in clashes between Fulani and Adara communities.
2.70    The government has deployed additional police and army units to curb the violence, including two military operations—Exercise Cat Race in February 2018 and Operation Whirl Stroke, which is ongoing. These efforts, in search of enduring solutions to the conflict, have involved community consultation and have not been purely military in nature. However, international human rights groups have reported uncoordinated and inadequate responses by state and federal authorities may have deepened mistrust and perception of authorities’ bias and complicity in the violence.
2.71    DFAT assesses communal violence in the Middle Belt region is an enduring security threat to both combatants and civilian inhabitants of the region, which remains at risk of further escalation.[1]
[1] DFAT Country Information Report – Nigeria, 3 December 2020, pp. 19–21.
…
Conditions for Returnees
5.41    Thousands of Nigerians enter and leave the country every day. According to the National Commission for Refugees, Migrants and Internally Displaced Persons, Nigeria received a total of 11,494 returnees in 2018, of which 10,180 were from Libya. There is no evidence of any stigma attaching to such returnees.
5.42     Nigerian nationals may return voluntarily to any region of Nigeria at any time by way of the Voluntary Assisted Return and Reintegration Programme, run by the International Organization for Migration (IOM) and co-funded by the European Refugee Fund. The Programme provides assistance with obtaining travel documents, booking flights, and organising re-integration assistance in Nigeria, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers. Upon arrival, returnees can receive immediate assistance such as food, medical screening, overnight accommodation and money (up to 100 Euros) for basic needs and transportation. Returnees can also receive in-kind re-integration assistance and skills training.
5.43    The government allocated 100 billion naira (around AUD400 million) in its 2019 Budget to projects that included re-integration efforts for returnees. Some states also offer monthly stipends for returnees. In August 2019, the government established the Ministry of Humanitarian Affairs, Disaster Management and Social Development, which aims to better coordinate rehabilitation and re-integration efforts.
5.44    Nigerian citizens returning from overseas with a criminal record can be charged under Decree 33 of the National Drug Law Enforcement Agency Act (1990). Decree 33 provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas, including those with drug convictions and other serious crimes (including money laundering, fraud, armed robbery and rape). The minimum sentence under Decree 33 is five years’ imprisonment. In practice, DFAT understands the Nigerian Government has rarely given effect to Decree 33.[2]
…
46.PREVALENCE OF FRAUD
5.56 Although the Penal Code and the Criminal Code criminalise fraud and the falsification of documents, Nigeria has experienced high rates of document fraud in the past. In addition to birth certificates, death certificates and marriage certificates, immigration officials report other common documents subject to the possibility of falsification include bank statements, health insurance certificates, invitation letters, letters of introduction and letters of employment from multinational companies. Such fraudulent documents are often used to obtain passports: in June 2017, the Police Special Fraud Unit reported the Italian Embassy was sending to them an average of 50 Nigerian passports obtained through the use of fraudulent documents monthly.
5.57    Those seeking illegal passports may include those who have been deported and had their passports seized, those seeking asylum, and those engaging in illegal overseas labour (such as prostitution) through agents. Nigerians may reportedly also seek fraudulent passports from countries such as Ghana, Senegal, Guinea and Mozambique.
5.58    In-country sources report numerous business operations exist in Nigeria from which it is neither difficult nor expensive to obtain a fraudulent driver’s licence or other documents that can be used to obtain a genuine passport (such as marriage certificates, birth certificates, age declarations, and letters of identification from local government). Corruption at local NIS offices may also enable the fraudulent production of genuine passports.
5.59    Nigeria has established institutions and strengthened procedures to combat the risk of fraud. Banking system controls, for example, have facilitated the growth of electronic transactions and widespread use of mobile app funds transfer. Nigeria is gradually strengthening its national identity system and biometrics. The NIS has a forensic laboratory for the examination of travel documents and monetary instruments, and the Nigeria Police Force has established a Special Fraud Unit to combat fraud, which actively investigates and prosecutes suspects. DFAT understands, however, that very few cases have thus far resulted in convictions.
5.60    DFAT assesses that, notwithstanding Nigeria’s efforts to improve controls against fraud, document fraud remains a significant issue in Nigeria, including in the process for re-issuing lost documents.[3]
[2] Ibid, p 58–59.
[3] Ibid pp 60–61.
Hearing, credibility, findings, and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nigeria and accordingly his claims will be assessed against Nigeria.
The Tribunal has the following numerous and significant credibility issues with the applicant’s claims.
Firstly, the applicant has been inconsistent in evidence as to when it was that his mother-in-law died after the attack on her. In the Tribunal hearing, the applicant indicated that he got a phone call from neighbours in the early afternoon on his way back to his home from Lagos who told them about Fulani herdsmen entering his home and attacking his mother-in-law. The applicant indicated that he returned home mid-afternoon and took his mother-in-law with a neighbour to the hospital in a car. He phoned his wife who attended the hospital. Arrangements were made for the children to be cared for by others. The applicant indicated that his mother-in-law died at around noon the next day.
In contrast in the interview with the delegate the applicant indicated that his mother-in-law had died at midnight on the night that she was attacked.
In response to this inconsistency in the hearing the applicant indicated that he does not have an accurate recollection because of the impact of the trauma that he has suffered. As indicated below, at multiple points in the hearing the applicant gave evidence that it is due to the impact of trauma that there are inconsistencies in his evidence.
As expanded further in this decision, the Tribunal is not satisfied that trauma would result in, cumulatively considered, all the inconsistencies.
The inconsistency on this issue is undermining of the applicant’s credibility.
Secondly, the applicant has not been consistent in terms of the day that his mother-in-law was attacked. In the hearing the applicant confirmed that on the day his mother-in-law was attacked his wife was working and his children were at school. The applicant confirmed earlier in the hearing that his wife worked and his children went to school Monday to Friday, and not at weekends.
The Tribunal put to the applicant that the written claims indicate that the attack on his mother-in-law, on [a specified day in] January 2017, was on a Saturday, which is inconsistent with claims that his wife was at work and his children were at school on that day.
The applicant had earlier given evidence in the hearing that the attack had happened on a Wednesday.
The applicant’s evidence on multiple occasions is that the attack on his mother-in-law happened on [that day in] January 2017. Given that this evidence is made in written claims with the opportunity of reflection by the applicant, the Tribunal is not satisfied that the applicant was mistaken or confused in providing this date.
The fact of the claimed attack occurring on a Saturday when it is claimed that his wife was at work and his children at school, which could not have been the case, is undermining of the applicant’s credibility.
The applicant referred similarly to trauma being the explanation for this and other inconsistencies. For reasons indicated, the Tribunal is not satisfied, cumulatively considered, of this.
Thirdly, the applicant has not been consistent in details of the claimed attack on his [Brother A] in March 2017. In the interview with the delegate, the applicant indicated that he ran away when he and his [Brother A] were first attacked, and then returned to the scene to find his [Brother A] having been injured in the attack where he was then taken to a chemist and the hospital, where he was released the same day.
In contrast, in the Tribunal hearing the applicant indicated that he fled from the attack and went straight to the police station where his injured brother was later brought to, before him being taken to the chemist and the hospital.
In the hearing, the applicant variously said that he ran away after his brother was taken to the hospital in fear for his own safety. At other points in the hearing, the applicant indicated that after his brother was treated in the local hospital near the farm he was taken by the applicant to hospital in Ibadan.
Despite this latter claim, the applicant said he could not remember how long his brother spent in the hospital in the area near his farm nor did he properly explain the inconsistency between claims of him running away after his [Brother A] was first hospitalised but gave other evidence that he took his [Brother A] from that hospital to hospital in Ibadan.
The applicant did not provide pertinent or convincing explanations to any of these inconsistencies other than to indicate that he had been suffering from trauma which caused uncertainty as to key details.
For reasons indicated, the Tribunal is not satisfied of this. The multiple and significant inconsistencies as to the circumstances involving the attack on his [Brother A] are seriously undermining of the applicant’s credibility.
Fourthly, the applicant has not been consistent in terms of when he stopped living in his home in [Town 1]. In the interview with the delegate, the applicant said that it was after his brother died [in] May 2017 he stopped staying at his home in [Town 1]. In contrast, in the Tribunal hearing the applicant indicated that he stopped staying at this home after his mother-in-law died in January 2017.
In response when the Tribunal put to the applicant that the evidence in the hearing was inconsistent, the applicant in the hearing said that he would go back from time to time to his home after his mother-in-law died but it was only after his [Brother A] died that he stopped going back altogether.
The Tribunal does not consider that this explains the inconsistency. The inconsistent statements are not qualified in this way. Also, the Tribunal notes that in the interview with the delegate the applicant indicated that it was the case that after his [Brother A] died he would sometimes return home in the presence of other people which is inconsistent with the explanation in the hearing.
Fifthly, the applicant has not been consistent in details of one of the claimed attacks in Lagos. In the interview with the delegate, the applicant indicated that the attack that happened in August 2017 happened when he was going to buy [item 1s]. In contrast, in the Tribunal hearing the applicant indicated that the one and only attack that happened to him in Lagos happened when he was going to a market to meet a friend.
In response to this inconsistency put to the applicant in the hearing, he indicated that he was indeed also going to buy [an item 1] in addition to meeting a friend.
The Tribunal does draw some adverse interest in relation to this inconsistency, although it is not a major inconsistency. It is not considered determinative in adverse credibility findings but it is considered cumulatively together with more significant credibility issues.
Sixthly, the applicant has not been consistent in terms of the number of times he was subject to Fulani herdsmen looking for him in Lagos. In the interview with the delegate, the applicant refers to the first incident being in August 2017. The applicant then refers to a second incident in October 2017 when he was chased into a [venue 1] by Fulani herdsmen and had to sleep there overnight.
In contrast, in the Tribunal hearing the applicant indicated that there was only one adverse incident in Lagos which was when he was going to meet a friend in a market. In response in the hearing to the inconsistency being put to him the applicant indicated that the inconsistency is a product of him being confused by the accent of the delegate.
The Tribunal is not satisfied as to this explanation including considering all of the credibility concerns cumulatively.
Seventhly, it is not plausible that Fulani herdsmen would be searching for and finding the applicant in random locations in Lagos, a city of approximately 20 million people. In response to this issue in the hearing, the applicant indicated that police had indicated that the herdsmen may have taken a photograph of the applicant when they went to his home and they were using this to track him down across Nigeria.
The Tribunal considers that this explanation is extremely unlikely, bordering on fanciful. The implausibility of Fulani herdsmen seeking to track down the applicant across Nigeria in the circumstances claimed is adverse to the applicant in considering credibility issues.
Eighthly, evidence of the applicant of continuing to work at his office and studying for a certificate in Ibadan up until November 2017 is undermining of his claims to have effectively been in hiding either from January or May 2017. In the hearing, the applicant initially gave evidence that he continued to attend his office in Ibadan up until November 2017 at least mostly on a weekly basis. The applicant’s written claims indicate that he was attending the [Qualification 2] Test in Ibadan from October 2015 until November 2017, which he confirmed in the hearing.
When the Tribunal put to the applicant both the fact of his work and certification process in Ibadan up until November 2017 being inconsistent with him being in hiding, the applicant initially said that he needed for professional reasons to get the certification. In relation to his work, the applicant indicated that he could delegate work in his office to his manager, implying that he was able to avoid the office. In relation to this however, earlier in the hearing the applicant had indicated that he continued to work at least at times in his office in Ibadan up until November 2017.
The Tribunal considers that the applicant’s work in Ibadan and the certification process is inconsistent with claims of the applicant being in hiding. If Fulani herdsmen were seeking to find and harm the applicant they could readily have done so at his reasonably regular workplace in Ibadan.
Ninthly, the applicant’s evidence as a whole in addition to being inconsistent in a number of respects identified, was shifting, inconsistent and did not provide a narrative and detail that persuaded the Tribunal that the applicant was recounting events that he actually experienced. This is particularly the case in relation to the events surrounding the claimed death of his mother-in-law and the attack on him and his [Brother A].
In response to this issue at hearing he said it is not possible or reasonable to expect him to be precise and consistent in evidence because he would have to memorise everything. He referred to the effect of trauma affecting his recollection. He refers to the stress and burden of having to make sure that his family was taken care of.
The Tribunal is not satisfied that this explains the very unconvincing oral evidence in relation to key events claimed. His oral evidence significantly did not convey the impression to the Tribunal that the applicant was recounting events that have actually happened to him. This is undermining of the applicant’s credibility.
Before considering these credibility issues, the Tribunal notes evidence given by [name], the applicant’s wife, at the end of the Tribunal hearing. [She] indicated that she has been the applicant’s wife for three years. They are Christian. [She] referred to her husband being credible. He is loved by her parents. The applicant has taken care of her and his family in Nigeria to whom he sends money. Trauma needs to be considered in terms of inconsistencies. The applicant is a credible and truthful man.
The Tribunal considers these nine credibility issues cumulatively. They are credibility issues including on core and significant matters and there are many of them. The Tribunal does not expect perfect recollection and makes allowances for mistakes and not properly remembering details, including as a result of trauma. However the inconsistencies include significant matters that the Tribunal does not consider would be easily forgotten given what would have been the significant impact of the claimed events.
As indicated, the applicant has in response to most of the credibility issues referred to the trauma that he suffered affecting his recollection. The Tribunal makes some allowances for trauma but does not consider that it goes anywhere near to explaining the cumulative facts of the multiple and significant credibility issues identified.
The Tribunal does not consider that the applicant has been a truthful or credible witness. The Tribunal discussed with the applicant at the hearing documentary corroborative evidence that he had provided, including the medical report in relation to his brother-in-law and a police report in relation to the applicant’s complaints to police. The Tribunal noted the information in the DFAT report extracted in this decision as to the ready ability to obtain fraudulent documents in Nigeria. The Tribunal noted that aspects of the medical report and particularly the police report were very self-serving to the applicant’s claims and contained matters that the Tribunal did not consider would ordinarily be included in such reports. All of this casts doubt on the authenticity of these documents.
In response, the applicant indicated that the documents were obtained by his brother and this explains their contents. He indicated they are genuine.
The Tribunal notes that in addition to the medical report in relation to the [Brother A] and the police report, the applicant has provided statements by third parties which corroborate aspects of his claims.
However, in all the circumstances and particularly the overwhelming cumulative nature of the credibility issues identified, the Tribunal is not satisfied that the medical and police reports are authentic or that the corroborative third-party statements provide truthful information in significant respects. The Tribunal gives the supporting documents and statements little weight.
The Tribunal is not satisfied as to the truth of any of the applicant’s substantive claims. The Tribunal is not satisfied that the applicant poisoned cattle of Fulani herdsmen which resulted in herdsmen seeking revenge against the applicant including tracking him for a significant period over Nigeria. The Tribunal is not satisfied that the applicant’s mother-in-law was attacked and died in the circumstances claimed. The Tribunal is not satisfied that the applicant and his [Brother A] were set upon by herdsmen and his [Brother A] attacked in the circumstances claimed. The Tribunal is not satisfied that the applicant’s [Brother A] died of injuries sustained in the claimed attack. The Tribunal is not satisfied that the applicant or his family went into hiding at any point for the reasons claimed. The Tribunal is not satisfied that the applicant was subsequently chased or attacked in Lagos or anywhere else by Fulani herdsmen or by anyone else.
The Tribunal is prepared based on death certificates provided to accept that the applicant’s mother-in-law and [Brother A] have died but it is not prepared to accept that this has happened in the circumstances claimed.
The Tribunal is not satisfied that the applicant fled from Nigeria to Australia fearing for his life for the reasons claimed. The Tribunal is not satisfied that there are Fulani herdsmen in Nigeria or anyone else who have had or continue to have an adverse interest in the applicant and the desire to harm him as a result of a belief that the applicant has poisoned their cows, or for any other reason.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

100. The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1762

21 April 2022

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Immigration

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